Common use of Forecasts Orders and Delivery Clause in Contracts

Forecasts Orders and Delivery. 2.01 During the term of this Agreement, SELLER agrees that it will sell to ALCON and ALCON agrees that it will purchase from SELLER, such requirements of the Product that ALCON orders pursuant to the terms of this Agreement. 2.02 ALCON shall furnish SELLER with a written updated six (6) month rolling forecast of the quantities of the Product that ALCON intends to order from SELLER during the next following six (6) months. It is understood and agreed that any forecasts issued to SELLER by ALCON pursuant to the terms hereof, shall not be binding nor constitute a firm order of the Products. The ordering of Products shall be by means of individual purchase orders and change orders thereto (hereinafter referred to collectively as “Purchase Order(s)”), issued from time to time by ALCON’s procurement personnel and ALCON’s subcontractors who are authorized herein to do so. ALCON’s sole liability to SELLER shall be limited to actual quantities ordered against individual Purchase Orders. In the event that the terms of any Purchase Order are not consistent with those of this Agreement, then the terms of this Agreement will prevail. 2.03 If ALCON requests changes to any Purchase Order after receipt thereof by SELLER, SELLER shall be obligated to comply with all changes to Purchase Orders that increase or decrease by twenty percent (20%) or less the aggregate quantity of Product ordered by ALCON for the relevant period. SELLER shall exercise its best efforts to comply with all other changes to Purchase Orders that ALCON may request. 2.04 In the event SELLER discovers that there is a likelihood that it will fail to deliver a shipment of Product on the date set forth in a Purchase Order, SELLER shall notify ALCON within five (5) business days of the discovery of such failure. Furthermore, in the event that because of SELLER’s failure to timely deliver a shipment of Product as set forth herein, ALCON is forced to purchase a Product equivalent from a third party, ALCON shall have the right to terminate all or a portion of the Purchase Order related to the Product delivery in question. 2.05 SELLER shall deliver the quantities of each Product set forth in each Purchase Order on the delivery date specified therein. All shipments shall be F.C.A. (INCOTERMS 2000) SELLER’S facilities, at which point all title to, and risk of loss of, the Products shall pass to ALCON (or its Affiliate issuing the purchase order). SELLER shall not be liable for any delay in shipment of the Product that is beyond the reasonable control of SELLER. 2.06 ALCON shall purchase a minimum of ** of Product during each 12-month period of this Agreement (Minimum Volume). If ALCON fails to purchase the Minimum Volume, ALCON shall pay to SELLER, pursuant to the terms of Paragraph 3.02, the difference between the Minimum Volume and the volumes actually purchased by ALCON as of the end of each such 12 month period.

Forecasts Orders and Delivery. 2.01 During the term Term of this Agreement, SELLER ▇▇▇▇▇▇ agrees that it will sell to ALCON and ALCON agrees that it will purchase from SELLER, such requirements quantities of the Product Ingredients that ALCON orders pursuant to the terms of this Agreement. SELLER will use its best efforts to obtain maximum production of the Ingredients in connection with this Agreement. 2.02 At the start of each calendar quarter of each Contract Year, ALCON shall furnish SELLER with a written written, updated six (6) month rolling [* * *] forecast of the quantities of the Product that Ingredients, which ALCON intends to order from SELLER during the next following six (6) months[* * *]. It is understood and agreed that any quarterly forecasts issued to SELLER by ALCON pursuant to the terms hereof, shall include a [* * *] binding period (“Binding Forecast”), followed by a [* * *] non-binding period (“Non-Binding Forecast”) that will be used for planning purposes, but shall not be binding nor constitute a firm order of the ProductsIngredients. The ordering of Products the Ingredients shall be by means of individual purchase orders and change orders thereto (hereinafter referred to collectively as “Purchase Order(s)”), issued from time to time by ALCON’s manufacturing or procurement personnel and ALCON’s subcontractors who are authorized herein to do so. ALCON’s sole liability ALCON shall submit Purchase Orders to cover the Binding Forecast no later than [* * *] prior to the start of the binding period, specifying the quantity, delivery address and need by date (not to be less than [* * *] from the issuance of the Purchase Order) (such date being the “Delivery Date” for such Purchase Order). Purchase Orders delivered by ALCON to SELLER are cancellable and changeable by ALCON [* * *] and upon such cancellation or change, such amounts are no longer part of the Binding Forecast; provided, however, that the Delivery Date shall not be limited to actual quantities ordered against individual [* * *]. SELLER will accept all Purchase OrdersOrders received during a particular calendar year so long as the aggregate quantity of the Ingredients under such Purchase Orders does not exceed the Committed Capacity (defined in Section 2.05) as set forth on Exhibit “B”. In the event that the terms of any Purchase Order are not consistent with those of this Agreement, then the terms of this Agreement will prevail. 2.03 . If ALCON does not order and purchase the Ingredients as forecast in a Binding Forecast, SELLER may only invoice, and ALCON will pay, for actual costs incurred by SELLER for manufacturing performed in reliance on ALCON Binding Forecasts. All Non-Binding Forecasts are only estimates of ALCON’s anticipated purchases and will be prepared in good faith in order to facilitate SELLER’s efficient manufacture and shipment of the Ingredients in compliance with this Agreement. ALCON will not be responsible for any loss or expense of SELLER arising from any Non-Binding Forecast. If ALCON requests changes to a Binding Forecast or any Purchase Order after receipt thereof by SELLER, SELLER shall be obligated Orders to comply with all changes to Purchase Orders that increase or decrease by twenty percent (20%) or less the aggregate quantity of Product Ingredients ordered by ALCON for the relevant period. , then SELLER shall exercise its best efforts to comply with all other changes the increases to the Binding Forecast or Purchase Orders that ALCON may requestrequest and will treat the change as a Supplemental Order. ALCON may submit supplemental orders for additional Ingredients beyond the forecasted amounts (“Supplemental Orders”). SELLER will notify ALCON as soon as practicable, but in no event later than [* * *] after the date of the order, as to when the Supplemental Order is to be filled. SELLER will use its best efforts to fill Supplemental Orders within [* * *] of receipt (such delivery date being agreed upon by SELLER and confirmed in writing to ALCON, the “Supplemental Delivery Date” for such Supplemental Order). 2.04 2.03 In the event SELLER discovers that there is a likelihood that it will fail to deliver a shipment of Product Ingredients on the date Delivery Date set forth in a Purchase OrderOrder or on the Supplemental Delivery Date set forth in a Supplemental Order and in conformity with the warranty set forth in Section 5.01 (whether by reason of a Force Majeure Event (as defined herein) or otherwise), SELLER shall notify ALCON within five (5) business days [* * *] of the discovery of such failurediscovery. FurthermorePromptly thereafter, in the event that because of SELLER’s failure parties shall meet to timely deliver a shipment of Product as set forth herein, ALCON is forced to purchase a Product equivalent from a third party, discuss how ALCON shall have the right to terminate all obtain such full quantity of conforming Ingredients. Compliance by SELLER with this Section shall not relieve SELLER of any other obligation or a portion of the Purchase Order related to the Product delivery in questionliability under this Agreement. 2.05 2.04 SELLER shall deliver the quantities of each Product Ingredient set forth in each Purchase Order on the delivery date Delivery Date specified therein. All shipments SELLER shall be F.C.A. deliver all Ingredients FCA (INCOTERMS 2000INCOTERMS® 2020) SELLER’S facilities’s facilities (Chaska, MN 55318), at which point all title to, to and risk of loss of, of the Products Ingredients shall pass to ALCON (or its Affiliate issuing the purchase order)Purchase Order) at the time of delivery to ALCON’s carrier. SELLER shall not be liable for any delay in shipment of the Product Ingredients that is beyond the reasonable control of SELLER by reason of a Force Majeure event occurring in accordance with, and subject to the terms of, Section 8.01. 2.05 Set forth on Exhibit “B” are non-binding anticipated forecast volumes (“Anticipated Forecast Volumes”) for each Ingredient during each [* * *] period of this Agreement. Provided that ALCON is not in material breach of this Agreement, SELLER shall reserve manufacturing capacity committed and dedicated to ALCON for at least the volumes set forth on Exhibit “B” (“Committed Capacity”) during each [* * *] period of this Agreement. As Committed Capacity for the Ingredients increases in future years of this Agreement, SELLER and ALCON hereby agree to execute an amendment to this Agreement and provide a revised Exhibit “B” with such new Committed Capacity information for the Ingredients. If SELLER fails to provide the Committed Capacity in any year and is unable to secure a third party acceptable to ALCON to provide such Committed Capacity on behalf of SELLER, then, as ALCON’s sole remedy for a SELLER default on Committed Capacity, SELLER shall grant to ALCON, upon ALCON’S request, [* * *] until such time as SELLER is able to demonstrate that it can meet the Committed Capacity, at which time [* * *] shall terminate and [* * *]. ALCON may be permitted to use [* * *], subject in all respects to the confidentiality obligations set forth in this Agreement. [* * *]. 2.06 SELLER and ALCON agree to work together in good faith to finalize a plan by [* * *] to increase Committed Capacity (the “Expanded Capacity Plan”) to meet the Anticipated Forecast Volumes for each Ingredient set forth on Exhibit “B”. After the finalization of the Expanded Capacity Plan, SELLER shall purchase a minimum of ** of Product during each 12-month period of this Agreement (Minimum Volume)use its best efforts to implement and execute the Expanded Capacity Plan to enable SELLER to meet the Anticipated Forecast Volumes. If any timing milestone under the Expanded Capacity Plan is not executed in accordance with such plan, ALCON will have a [* * *] right for ALCON to [* * *] to meet the Expanded Capacity Plan. 2.07 Beginning on [* * *], the on-time in-full service level performance metric (“OTIF Metric”) for SELLER requires that (a) SELLER ship to ALCON the Ingredients set forth on each Purchase Order for delivery no earlier than [* * *] before and no later than, [* * *] after the Delivery Date on such Purchase Order, or [* * *] after the Supplemental Delivery Date on such Supplemental Order, and (b) the quantity delivered by SELLER to ALCON be not less than [* * *]% of the quantity on such Purchase Order or Supplemental Order for [* * *] and not less than [* * *]% of the quantity on such Purchase Order or Supplemental Order for [* * *]. If SELLER fails to purchase achieve the Minimum VolumeOTIF Metric, ALCON calculated from the average of all cumulative Purchase Orders and Supplemental Orders with Delivery Dates and Supplemental Delivery Dates planned during the measuring period (each full calendar month after [* * *]), for [* * *], then SELLER shall pay [* * *] in order to help facilitate the level of manufacturing and safety stock necessary to meet the OTIF Metric, and SELLER hereby agrees to allow [* * *] regarding SELLER’s schedule and plan to meet the OTIF Metric. Notwithstanding the foregoing, in no event shall this Section 2.06 apply to (i) any failure to meet the OTIF Metric because of a Force Majeure Event, (ii) the extent of any delay that is not due to SELLER, pursuant ’s failure to comply with Ingredient Standards or SELLER’s failure to otherwise comply with the terms of Paragraph 3.02this Agreement, such as a delay by the shipper, or (iii) any change in Ingredient Specifications to the extent such changes caused the delay. 2.08 If SELLER’s failure to meet the OTIF Metric continues for [* * *] after a failure to meet the OTIF Metric for the [* * *] described in Section 2.06, then, until the [* * *] Rights Termination Date (as defined below), SELLER hereby agrees (i) [* * *], (ii) [* * *], and (iii) [* * *] (collectively, the difference between “[* * *] Rights”). All [* * *] Rights granted to ALCON under this Section 2.07, if any, shall automatically terminate on the Minimum Volume date that SELLER meets the OTIF Metric for [* * *] (such date, the “[* * *] Rights Termination Date”). SELLER hereby agrees to use its commercially reasonable best efforts to ensure that the delivery of all Ingredients under the existing Purchase Orders and the volumes actually purchased by ALCON as of the end of each such 12 month periodSupplemental Orders are satisfied.

Forecasts Orders and Delivery. 2.01 During (a) On or before the term Effective Date, and thereafter on or before the last day of each calendar quarter during the Term, Tully’s shall provide to GMCR a written forecast (“Forecast”) of Tully’s anticipated demand for all Products and Other Coffee Products to be supplied by GMCR to Tully’s under this Agreement during the four calendar quarters next following the calendar quarter in which the Forecast is scheduled to be delivered hereunder. For each of the Products, the Forecasts shall be binding on Tully’s (i) to purchase during the first calendar quarter included in each Forecast at least [***]% of the quantity of such Product listed therein as the anticipated quantity demand for such Product during such calendar quarter or (ii) to pay to GMCR a surcharge equal to [***]% of the aggregate invoice price for the quantity of such Product purchased during such calendar quarter which is between the actual amount of Product purchased and [***]% of the quantity forecasted in such calendar quarter, notwithstanding the pricing limitations set forth in Section III(a). In addition, if during the first calendar quarter included in each Forecast Tully’s purchases in excess of [***]% of the quantity of such Product listed therein as the anticipated quantity demand for such Product during such calendar quarter, Tully’s shall be required to pay to GMCR a surcharge equal to [***]% of the aggregate invoice price for the quantity of such Product purchased during such calendar quarter in excess of such [***]% quantity, notwithstanding the pricing limitations set forth in Section III(a). (b) Tully’s shall submit purchase orders for the Products and Other Coffee Products either by email, facsimile or first class mail, which, at a minimum, set forth the product numbers, quantities and requested delivery dates. The purchase orders shall only become binding on the parties upon GMCR’s acceptance of such purchase orders, either by email, facsimile or first mail. (c) GMCR shall make commercially reasonable efforts to supply all Products and Other Coffee Products ordered in conformity with this Agreement, SELLER agrees that it will sell to ALCON and ALCON agrees that it will purchase from SELLER, such requirements but GMCR does not guarantee the availability of the Product that ALCON orders pursuant to the terms of this Agreement. 2.02 ALCON shall furnish SELLER with a written updated six (6) month rolling forecast of the quantities of the Product that ALCON intends to order from SELLER during the next following six (6) months. It is understood and agreed that any forecasts issued to SELLER by ALCON pursuant to the terms hereof, shall not be binding nor constitute a firm order of the Products or Other Coffee Products. The ordering If shortages of any Products shall be by means or Other Coffee Products ordered arise, whether due to manufacturing, transportation, regulatory, economic, supply chain, or other conditions, GMCR may allocate any of individual purchase orders and change orders thereto (hereinafter referred to collectively as “Purchase Order(s)”)its products among its customers, issued from time to time by ALCONincluding Tully’s procurement personnel and ALCON’s subcontractors who are authorized herein to do so. ALCON’s sole liability to SELLER shall be limited to actual quantities ordered against individual Purchase Orderson any commercially reasonable basis. In the event that GMCR is unable to fill all or any part of a purchase order for any Product or Other Coffee Product within 30 days after the terms of any Purchase Order are not consistent with those of this Agreement, then the terms of this Agreement will prevail. 2.03 If ALCON requests changes to any Purchase Order after receipt thereof by SELLER, SELLER shall be obligated to comply with all changes to Purchase Orders that increase or decrease by twenty percent (20%) or less the aggregate quantity of Product ordered by ALCON for the relevant period. SELLER shall exercise its best efforts to comply with all other changes to Purchase Orders that ALCON may request. 2.04 In the event SELLER discovers that there is a likelihood that it will fail to deliver a shipment of Product on the delivery date set forth in such order, then Tully’s shall be entitled to use a Purchase OrderSecondary Vendor as provided for in Section II(d) above to supply the Product or Other Coffee Product, SELLER shall notify ALCON within five (5) business days except K-Cup portion packs, until such time as GMCR is able to supply the quantity of the discovery ordered Product or Other Coffee Product to Tully’s, at which time Tully’s shall once again be obligated to purchase its requirements of such failure. Furthermorethe Product or Other Coffee Product from GMCR. (d) GMCR agrees to deliver, and shall only be obligated to deliver, all Products and Other Coffee Products supplied under this Agreement to a single facility in the event that because United States selected by Tully’s (the “Central Facility”). Tully’s shall provide GMCR with written notice of SELLERthe specific delivery address of the Central Facility before the Effective Date. At its sole discretion, Tully’s failure may change the location of the Central Facility at any time during the Term of the Agreement, so long as such changes are made upon thirty (30) days prior written notice to timely GMCR. GMCR shall deliver a shipment of Product the Products and Other Coffee Products no more than two (2) days after the agreed delivery date as set forth herein, ALCON is forced to in the respective purchase a Product equivalent from a third party, ALCON shall have the right to terminate all or a portion of the Purchase Order related to the Product delivery in questionorder. 2.05 SELLER (e) In GMCR’s sole discretion, GMCR shall deliver the quantities of each Product replace, at its own expense, all Products and Other Coffee Products that do not conform in all material respects to GMCR’s warranties, as set forth in each Purchase Order on Section VI, upon delivery of such products to Tully’s (“Non-Conforming Products”), including transportation costs of getting replacement Products or Other Coffee Products to Tully’s, or shall credit to Tully’s account for the delivery date specified therein. All shipments delivered price of such Products or Other Coffee Products plus transportation expenses; provided, however, Tully’s shall be F.C.A. (INCOTERMS 2000) SELLER’S facilities, at which point all title to, and risk notify GMCR without undue delay after Tully’s becomes aware of loss of, the Products shall pass to ALCON (or its Affiliate issuing the purchase order). SELLER shall not be liable for any delay in shipment of the Product that is beyond the reasonable control of SELLERsuch Non-Conforming Products. 2.06 ALCON shall purchase a minimum of ** of Product during each 12-month period of this Agreement (Minimum Volume). If ALCON fails to purchase the Minimum Volume, ALCON shall pay to SELLER, pursuant to the terms of Paragraph 3.02, the difference between the Minimum Volume and the volumes actually purchased by ALCON as of the end of each such 12 month period.